New South Wales Supreme Court CITATION : Karmas v New South Wales Land and Housing Corporation [1999] NSWSC 157 CURRENT JURISDICTION : Administrative Law Division FILE NUMBER(S) : 30081/98 HEARING DATE(S) : 12 February 1999 JUDGMENT DATE : 12 February 1999 Timothy Karmas - As Representative of the Estate of Eleni Karmas (P1) David Karmas (P2) PARTIES : George Karmas (P3) John Karmas (P4) Nikolaos Karmas (P5) Residential Tenancies Tribunal (D2) JUDGMENT OF : Dunford J LOWER COURT JURISDICTION : Residential Tenancies Tribunal LOWER COURT FILE NUMBER(S) : 98/04293 LOWER COURT JUDICIAL OFFICER : COUNSEL : Mr A Barrie (P) Mr S Robson (Solicitor) (D2) SOLICITORS : Verekers, Solicitors (P) IV Knight Crown Solicitor (D2) CATCHWORDS : Subpoena; Administrative Tribunal; Whether required to produce notes made by members in course of their deliberations; Public interest immunity Evidence Act 1995 ACTS CITED : ss 129 & 130 Residential Tenancies Act 1987 s 82 Duke of Buccleuch -v- Metropolitan Board of Works (1871) LR 5 HL 418 Ex parte Electronic Rentals Pty Ltd re Anderson & Ors [1970] 3 NSWR 355 CASES CITED : Hennessey -v- Broken Hill Pty Limited (1926) 38 CLR 342 Zanatta -v- McCleary [1976] 1 NSWLR 230 Ward -v- Shell-Mex and BP Limited (1952) 1 KB 280 Wentworth -v- Rares (unreported Court of Appeal 19 December 1990). DECISION : Tribunal not required to produce notes made by members in course of their deliberations. TIMOTHY KARMAS - AS REPRESENTATIVE OF THE ESTATE OF ELENI KARMAS & 4 ORS v NEW SOUTH WALES LAND AND HOUSING CORP & ANOR HEADNOTE Subpoena - Administrative Tribunal - Whether required to produce notes made by members in course of their deliberations - Public interest immunity - Evidence Act, ss 129 and 130 - Residential Tenancies Act 1987, s 82. In an appeal from the Residential Tenancies Tribunal the plaintiff caused a subpoena to issue requiring production of the complete file of the Tribunal relating to the relevant matter. The Tribunal produced all records of proceedings including published reasons for decision but claimed public interest immunity for members' handwritten notes made in the course of them performing their office as members of the Tribunal or notes of those persons' deliberations in acting as such members. Held: The documents sought were privileged from production on the ground of public interest immunity. Cases Cited: Duke of Buccleuch -v- Metropolitan Board of Works (1871) LR 5 HL 418; Ex parte Electronic Rentals Pty Ltd; re Anderson & Ors [1970] 3 NSWR 355; Hennessey -v- Broken Hill Pty Limited (1926) 38 CLR 342; Zanatta -v- McCleary [1976] 1 NSWLR 230; Ward -v- Shell-Mex and BP Limited (1952) 1 KB 280; Wentworth -v- Rares (unreported Court of Appeal 19 December 1990). THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION DUNFORD J Friday 12 February 1999 30081/98 - TIMOTHY KARMAS - AS REPRESENTATIVE OF THE ESTATE OF ELENI KARMAS & 4 ORS v NEW SOUTH WALES LAND AND HOUSING CORP & ANOR JUDGMENT - 1 HIS HONOUR: This is an application by the Residential Tenancies Tribunal for an order relating to a subpoena that has been directed to it on behalf of the plaintiffs in the proceedings which are in substance an appeal by the plaintiffs against a decision of the Residential Tenancies Tribunal dated 7 July 1998 as amended by a notice dated 6 August 1998 and a number of interlocutory rulings or orders by the Tribunal. 2 The first defendant is the New South Wales Land and Housing Corporation which was successful in the Tribunal in obtaining an order for possession of certain premises at 10 Anthony Street, Padstow, and the second defendant has filed a submitting appearance. 3 The subpoena seeks production of the complete file of the Tribunal in relation to the relevant matter. An affidavit by the acting Registrar of the Tribunal discloses that most of the documents referred to in the subpoena have been produced without objection, but a claim for public interest immunity is made in respect of the balance contained in a confidential exhibit, and the affidavit discloses that each of the remaining documents is a note made by a member of the Tribunal in the course of that person performing the office of member or is a note of that person's deliberations in acting as such member; and that none of the documents not produced is a minute of the Tribunal or a written record of reasons given by a member for a decision of the Tribunal nor constitutes published reasons of a decision of the Tribunal. 4 The second defendant relies on the terms of ss 129 and 130 of the Evidence Act 1995. Section 129 provides that, subject to certain exceptions, evidence of the reasons for a decision made by a person who is a judge in an Australian or overseas proceeding or the deliberations of a person so acting in relation to such decision must not be given, nor must such evidence be given by tendering as evidence a document prepared by such a person; and "judge" is defined in the Dictionary to the Act as "the judge, magistrate or other person before whom the proceeding is being held". 5 Section 82 of the Residential Tenancies Act 1987 confers on members of the Tribunal in the exercise of the functions of a member the same protection and immunity as a justice in the exercise of the functions of a justice under the Justices Act 1902. 6 Section 129(5)(c) of the Evidence Act 1995 provides an exception in respect of an appeal from or judicial review of a decree, order or sentence of the court. It has long been established that although the formal act or orders of a judge or court can be proved when an appropriate occasion arises, such as in the circumstances referred to in s 129(5), no evidence can be given or can be required to be given of the thought processes or deliberations of a judge or arbitrator in reaching a decision, nor can the production of any notes recording his or her thoughts or deliberations in that process be produced. 7 A number of cases have dealt with this including the Duke of Buccleuch -v- Metropolitan Board of Works (1871) LR 5 HL 418; Ex parte Electronic Rentals Pty Ltd; re Anderson & Ors [1970] 3 NSWR 355; Hennessey -v- Broken Hill Pty Limited (1926) 38 CLR 342 at 349; Zanatta -v- McCleary [1976] 1 NSWLR 230. 8 In the last mentioned case Samuels JA referred to a suggested distinction between the judges of superior courts and other judges, but his Honour doubted the distinction was valid and in Ward -v- Shell-Mex and BP Limited (1952) 1 KB 280 it was held that evidence as to the reasons which prompted a member of a Medical Board to come to the conclusion which resulted in the certificate which had been granted by the Medical Board was inadmissible. 9 The principle was summarised by Samuels JA in Wentworth -v- Rares (unreported Court of Appeal 19 December 1990), where his Honour said: "It has been contended...that a judge is not compellable to produce documents which have been involved in the performance of his duties as a judge, including drafts of judgments. Secondly it is put that there is a public interest immunity also which covers the situation." 10 After referring to Zanatta -v- McCleary his Honour went on: "I think there is no significant difference between prohibition upon a judge's being called to testify and his or her being required to produce in documentary form those considerations which have been involved in the act of judgment. It is a principle, I would have thought, clearly justified by grounds of common sense and policy." 11 For these reasons I am satisfied that the production of the remaining documents so far as not produced cannot be compelled both on the grounds of s 129 and public interest immunity under s 130. The plaintiff respondent has and will have available at the hearing the transcript of the various days, the reasons for the various judgments and rulings, and will have ample opportunity to make the points that are sought to be made by reference to those documents. 12 Accordingly I make order 1 as in the notice of motion and I order the respondent/plaintiff to pay the applicant/second defendant's cost of the motion. 13 Exhibits to be returned. Last Modified: 31/03/99 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.